P. v. Carnero
Filed 6/19/13 P. v. Carnero CA2/6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL CARNERO,
Defendant and Appellant.
2d
Crim. No. B240234
(Super.
Ct. No. BA372728)
(Los
Angeles County)
Miguel Carnero was
granted probation after a jury convicted him of violating a
(a)(4))
probation conditions lack a scienter requirement and are vague and overbroad. The trial court ordered appellant (1) not to
own, use, or possess dangerous or deadly weapons including firearms or other
concealable weapons, and (2) not follow, harass, molest any victim or witness
in the case. We affirm. (People v. Moore
(2012) 211 Cal.App.4th 1179, 1186-1188.)
Facts & Procedural History
This case arises out
of a long term feud between appellant and his neighbors, Janet Workman and
Robert Berg. On the evening of May 10, 2010, Workman asked appellant
to shut down a loud diesel engine that had been running three hours. Appellant screamed profanities, spit in
Workman's face, and swung at Workman, knocking her to the ground.
Workman and her husband
Robert Berg obtained a restraining order and built a view barrier atop the
block wall between the houses. On
November 2, 2011, appellant saw the work in progress, was enraged, and smashed
the wall barrier with a hammer. When
Burg returned home and saw the damage, appellant climbed partway up the wall
and yelled, "Fuck you, Berg!"
After the police arrived,
Berg told the officers, "This is the kind of stuff he's doing." Appellant shouted at Berg: " Don't talk to me, you mother
fucker." Los Angeles Police Officer
Michael Geitheim told appellant he was violating the restraining order and to
stop talking to Berg. At trial,
appellant admitted he was subject to a restraining order and told not to talk
to Workman or Berg.
At sentencing, the
prosecution argued that ammunition and firearms were recently found in
appellant's house during a probation check of appellant's son (Kenny). The son was on felony probation for drug
sales. It was a concern because
appellant had a history of violence dating back to 1982 for battery, assault
with a deadly weapon (1986), brandishing a weapon (1987), battery on his wife
(1997), and battery on his daughter (2003).
The trial court granted
probation, ordered appellant to attend anger management classes, issued a
protective order (§ 136.2), and imposed the following probation
conditions: "You're ordered not to
own, use, possess dangerous or deadly weapons including firearms or other
concealable weapons." "Do not
follow, harass, molest any victim or witness in this case, especially the
victim[s] Janet Workman, Robert Berg."
Discussion
Appellant argues that
the probation conditions lack a "knowing" requirement and are
unconstitutionally vague. (See In re
Sheena K. (2007) 40 Cal.4th 875, 890-891 [applying de novo review]. " 'A probation condition which either
forbids or requires the doing of an act in terms so vague that persons of
common intelligence must necessarily guess at its meaning and differ as to its
application, violates due process.' " (People v. Freitas (2009) 179
Cal.App.4th 747, 750.)
In People v. Moore, supra, 211 Cal.App.4th 1179, our
colleagues in Division Three rejected a vagueness/overbreadth challenge to the
following probation order: "Do not
own, use, or possess any dangerous or deadly weapons, including firearms,
knives, and other concealable weapons."
(
requirement was not added to the probation order, he could be found in
violation of probation for the unwitting possession of a weapon. (Ibid.) The Moore court rejected the argument
on the ground that the knowledge requirement is manifestly implied. (Id., at p. 1185.) "[T]he weapons prohibition here is
sufficiently precise to inform [the defendant] of what is required of him, and
for a court to determine whether the condition has been violated. Because [the defendant] can have no doubt
about what is prohibited, innocent or inadvertent violation of the condition is
far less likely than in cases in which the parameters of the probation
condition are imprecise." (
Applying a similar
argument that the probation condition not to own, use, or possess deadly or
dangerous weapons is vague or fails to comport with due process. Appellant complains that the phrase
"dangerous or deadly weapons" could be construed to prohibit
possession of a rope, a baseball bat, or a shoe. But it is willful possession or use of an
object as a dangerous or deadly weapon that is prohibited. To qualify as a deadly weapon, the object
must be used in such a manner as to be capable of producing, and likely to
produce, death or great bodily injury. (People
v. Aguilar (1997) 16 Cal.4th 1023, 1037.)
"[L]egal
definitions of 'deadly or dangerous weapon,' 'deadly weapon,' 'dangerous
weapon,' and use in a 'dangerous or deadly' manner, consistently include the
harmful capability of the item and the intent of its user to inflict, or
threaten to inflict, great bodily injury.
As a result of these well-defined terms, the phrase 'dangerous or deadly
weapon' is clearly established in the law." (In re R.P. (2009) 176 Cal.App.4th
562, 568.) A court could not find
appellant in violation of probation unless the evidence showed that appellant
willfully violated the dangerous or deadly weapon condition. (See e.g., People v. Quiroz (2011) 199
Cal.App.4th 1123, 1129; People v. Cervantes (2009) 175 Cal.App.4th 291,
295; People v. Galvan (2007) 155 Cal.App.4th 978, 982.)
"Thus, in the
unlikely event that [appellant] finds himself in unknowing and inadvertent
possession of a firearm or [dangerous] weapon, his lack of knowledge would
prevent a court from finding him in violation of probation. When a probationer lacks knowledge that he is
in possession of a gun or weapon, his possession cannot be considered a willful
violation of a probation condition.
[Citation.]" (People v.
Moore, supra, 211
Cal.App.4th at pp. 1186-1187.) We
conclude that the "no-dangerous-or-deadly-weapon" probation condition
is sufficiently precise for appellant to know what is required of him.
Follow, Harass, Molest Any Victim
or Witness
Appellant's due process
challenge to the "[d]o not follow, harass, molest any victim or witness in
this case, especially the victim[s] Janet Workman, Robert Berg" is without
merit. A probation condition is
overbroad if it prohibits a substantial amount of constitutionally protected
conduct (People v. Rubalcava (2000) 23 Cal.4th 322, 333) but there is no
constitutional right to harass, molest, follow, or stalk victims or
witnesses. As discussed in People v.
Moore, supra, 211 Cal.App.4th 1179, probation conditions may require express
modifications "[w]here a probation condition prohibits association with
certain categories of persons, presence in certain types of areas, or
possession of items that are not easily amendable to precise definition . . .
." (Id., at p. 1185.) This is not the
case here.
At the
with a protective order (§ 136.2) that prohibits him from harassing,
threatening, molesting, following, or stalking the victims. Appellant makes no claim that the protective
order is overbroad or vague, even though it mirrors the probation condition not
to "follow, harass, molest any victim or witness in this case. .
."
Appellant argues that
the probation condition must be modified to read: "Do not knowingly follow, harass,
or molest any victim or witness in this case." There is no due process right to an express
knowledge provision where, as here, the probation condition provides fair
warning of what conduct is prohibited. If the rule were otherwise, every
probation order to "obey all laws" would have to be modified to
read: "Do not knowingly
violate any law." "Superfluity
may not vitiate [Civ. Code § 3537], but neither does it enlighten." (People v. Kim (2011) 193 Cal.App.4th
836, 847.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Renee F. Corn, Judge
Superior Court County of Los Angeles
______________________________
Christian C. Buckley,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Paul M. Roadarmerl, Jr.,
Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General,
for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code.
name="_ftn2" title="">[2] Appellant's citations deal with vague
probation conditions affecting speech and association rights. (In re Sheena K., supra, 40 Cal.4th at p. 889 [forbidding association
with anyone disapproved of by probation officer]; In re Victor L. (2010) 182 Cal.App.4th
902, 912 [probation condition prohibiting minor from "remaining" in
presence of any person where dangerous or deadly weapons exist]; People v.
Lopez (1998) 66 Cal.App.4th 615, 628 [forbidding association with known or
unknown gang members].)
